‘Privacy Can Be Made A Fundamental Right Only Through A Constitutional Amendment’: Senior Advocate Aryama Sundaram Tells Nine-Judge Bench [Read Written Submission]

Senior counsel, Aryama Sundaram, arguing for Maharashtra, today told the nine-Judge Constitution Bench, that privacy can become a fundamental right only through a Constitutional amendment.   Sundaram contended that it is fallacious to suggest that certain manifestations of privacy can be part of Fundamental Rights, and some other manifestations of privacy can’t be. “Either privacy is a Fundamental Right, or it is not.  The genus of the species can’t be a Fundamental Right”, he told the bench categorically.   This contradicts what the Attorney General, K.K.Venugopal, told the bench on Wednesday.  According to the AG, certain species of privacy can be elevated to the protection of fundamental rights.

Sundaram submitted to the bench that the Supreme Court’s judgment in Gobind v State of Madhya Pradesh, although interpreted by many successive benches as having laid down that privacy is a fundamental right, did not in fact say so.  Therefore, he argued that all subsequent judgments which believed Gobind as having laid down the law, should be considered as per incuriam.

Sundaram cautioned the bench that if privacy, which he called inchoate, is made a fundamental right by the Court, it would open a Pandora’s box, and the Court would be called upon to decide multitude of cases.  “Tomorrow, someone will say that restricting compound wall heights to three feet violates my privacy”, he said.

He pointed out that even the petitioners kept saying that let privacy evolve, and did not define it. He argued that freedom of the press, or freedom to act, is a form of expression.  Is privacy a form, he asked.

Sundaram emphasised that privacy as a stand alone right was considered and rejected by the Constituent Assembly.  When Justice Rohinton Fali Nariman pointed out that much water has flown since the Constituent Assembly Debates, Sundaram said: “I am only saying this so that your lordships be alive to the fact”.

Sundaram also relied on the word “personal” before liberty in Article 21, to suggest that it should be interpreted narrowly.  Citing minutes of the Drafting Committee meeting on October 31, 1947, he said that the word ‘personal’ was retained because it was felt that ‘liberty’ might be construed widely.

Sundaram suggested that the purpose of Article 21 is for the protection of the body.  “Freedom of mind is to be found elsewhere, may be freedom of conscience”, he submitted.

At the end of the hearing on Thursday, Arghya Sengupta, counsel for Haryana, placed written submissions.

Arguments will continue on August 1.